Section 152 of BNS should not become a proxy for sedition

In 2022, before the Bharatiya Nyaya Sanhita was enacted, the Supreme Court had suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code (IPC) until the government reconsidered the law.
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The Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024), cautioned against using Section 152 of the Bharatiya Nyaya Sanhita (BNS) as a tool to stifle legitimate dissent. In 2022, before the BNS was enacted, the Supreme Court had suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code (IPC) until the government reconsidered the law. This was followed by a verbal proclamation by the Union Home Minister that ‘sedition’ would be repealed as an offence. Section 152 of the BNS criminalises any act exciting secession, armed rebellion, and subversive activities. It also criminalises acts encouraging feelings of separatism or endangering the sovereignty, unity, and integrity of India. While the BNS does not formally use the term ‘sedition’, the Rajasthan High Court’s recent decision hints that the spectre of sedition still looms large in the BNS.

Problems with Section 152

First, Section 152 BNS criminalises ‘acts endangering the sovereignty, unity, and integrity of India.’ However, what constitutes such endangerment under Section 152 has not been defined in the statute. This renders the provision vague, and amenable to expansive interpretation by enforcement authorities. Accordingly, a speech criticising a prominent historical or political figure, or sympathising with a controversial public figure, may be construed as ‘endangering’ the ‘unity and integrity of India’ for initiating legal action against a person. In the current sociopolitical environment that appears increasingly fragmented, a stringent penal provision without inbuilt checks for abuse may be used to stifle dissent and criticism.

Second, the term ‘knowingly’ in Section 152 substantially lowers the threshold for commission of the offence, especially in the context of social media. Even if a person does not have the malicious intent to incite activities or feelings prohibited under Section 152, they can still be considered liable for the offence if they share a post knowing it will reach a larger audience and may provoke such activities or feelings. This would be sufficient to arrest a person and prosecute them for commission of the offence under Section 152, which is cognisable and non-bailable. The lack of a statutory requirement to prima facie establish a causal linkage between the speech and its actual consequence before depriving the accused of personal liberty renders Section 152 amenable to abuse much like its predecessor, and has the potential to instill a chilling effect on free speech. The potential for abuse of the sedition-like provision is clearly borne out by data of the National Crime Records Bureau (NCRB) regarding Section 124A of the IPC. Out of 548 persons arrested between 2015 and 2020 for sedition, only 12 people were convicted in seven cases. More importantly, this was the situation when Section 124A IPC was relatively narrower and more specific in comparison to Section 152 of the BNS. Unfortunately, the NCRB data, and the benefit of hindsight regarding abuse of Section 124A, seem to have had no bearing in designing the contours of Section 152 of the BNS.

The way forward

In the past, the judiciary has consistently adopted a consequentialist interpretation to strike a careful balance between national interest and the freedom of expression. The Supreme Court has given weight to the actual consequence or impact of free speech in determining the offence rather than considering the ‘speech’ on its own. For instance, in Balwant Singh and Anr v. State of Punjab (1995), the Court drew a line of demarcation between casual sloganeering and its repercussions or consequences, requiring a direct causal nexus between the act and its impact for it to amount to an offence of sedition. Further, in Javed Ahmad Hazam v. State of Maharashtra and Ors (2024), the Court said the “effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds…” Moreover, in Kedar Nath Singh v. State of Bihar (1962), the Court had differentiated ‘disloyalty towards the government’ from ‘strongly worded criticism of the government and its policies’.

Given the lack of inbuilt safeguards in Section 152 to prevent its abuse, these interpretations should guide the enforcement authorities in applying this provision. Moreover, the Supreme Court should, when it gets the earliest opportunity, craft a set of guidelines for the enforcement authorities, demarcating the boundaries for the terms used under Section 152 BNS, as it did with respect to ‘arrest’ in D.K. Basu v. State of West Bengal. This will ensure that the provision does not become a proxy for the offence of sedition.

It is important to provide liberal space to thoughts, beliefs and expressions, and to subject them all to unimpeded criticisms, especially in the age of social media. We need to fall back on the concept of ‘marketplace of ideas’, as envisioned by Justice Holmes in Abrams v. United States, because the best test of truth will always be the potential of an idea to get itself accepted in a democratic and diverse society.

Pushkar Anand, Assistant Professor at the University of Delhi; Shivang Tripathi, Doctoral Candidate at Banaras Hindu University